COMMONWEALTH v. GAVELL (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After the denial of his motion to suppress evidence, the defendant was convicted by a District Court judge of carrying a loaded firearm without a license in violation of G. L. c. 269, § 10 (n); carrying a firearm without a license in violation of G. L. c. 269, § 10 (a); and two counts of possession of ammunition without a firearm identification card in violation of G. L. c. 269, § 10 (h) (1). On appeal, the defendant claims error in the denial of his motion to suppress. Additionally, he claims that his two convictions of unlawful possession of ammunition were duplicative of his conviction of unlawfully carrying a loaded firearm.

1. Motion to suppress. The defendant contends that the motion judge erred in denying the motion to suppress the firearm and ammunition seized from the defendant, because the Commonwealth failed to establish that at the time of the seizure there was reasonable suspicion that the defendant was involved in criminal conduct and that he was armed and dangerous. See Commonwealth v. Narcisse, 457 Mass. 1, 9 (2010) (protective frisk requires reasonable suspicion that person to be searched is involved in criminal activity and armed and dangerous). “In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error.” Commonwealth v. Meneus, 476 Mass. 231, 234 (2017), quoting Commonwealth v. Wilson, 441 Mass. 390, 393 (2004). However, “[w]e review independently the application of constitutional principles to the facts found.” Id.

Here, the motion judge found that a drug task force was monitoring the defendant as part of an ongoing drug investigation. At approximately 7:00 p.m. on March 29, 2017, police observed the defendant engage in activity they believed to be consistent with drug dealing in a high crime area.² Subsequently, members of the unit, who were all in plain clothes and unmarked cars, approached the defendant to inquire further. Sergeant Joseph Kintigos pulled his car up behind the defendant, who was on foot, got out, and said, “I want to speak to you for a second.” After hesitating, the defendant walked over to Sergeant Kintigos. Shortly after the two began speaking, Officer Serge Sanon arrived to see the defendant standing in a “bladed” posture, with his right side tilted away from Sergeant Kintigos.³ As Officer Sanon approached, he first noticed a bulge in the defendant's right jacket pocket and then “the butt of a firearm with wooden grips” protruding from the pocket. Officer Sanon immediately grabbed the jacket and removed the firearm. A further patfrisk of the jacket resulted in the seizure of ammunition from the left pocket.

Although the defendant acknowledges that Sergeant Kintigos's initial approach was a consensual encounter, the defendant argues that the events transformed into a seizure when Sergeant Kintigos asked him to remove his hands from his pockets and multiple police officers were present. An interaction with police is a seizure “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Commonwealth v. Franklin, 456 Mass. 818, 820-821 (2010), quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). The pertinent question is “whether an officer has, through words or conduct, objectively communicated that the officer would use his or her police power to coerce that person to stay.” Commonwealth v. Matta, 483 Mass. 357, 362 (2019).

Here, the motion judge's findings, which are supported by the record, indicate that there was no seizure until Officer Sanon grabbed the defendant's jacket. The motion judge made no finding that Sergeant Kintigos asked the defendant to take his hands out of his pockets; indeed, there was no such evidence presented at the motion hearing.⁴ And although two additional officers approached as the defendant was speaking to Sergeant Kintigos, all three officers were in plain clothes. See, e.g., Commonwealth v. Damelio, 83 Mass. App. Ct. 32, 36 (2012) (no show of authority when officers not in uniform approached defendant without hostility or display of weapons). The mere presence of three police officers who did not surround, impede, or command the defendant did not escalate the encounter into a seizure. See, e.g., Commonwealth v. Pimental, 27 Mass. App. Ct. 557, 561 (1989) (mere presence of three officers without more did not constitute sufficient show of authority to indicate seizure).

At the time that Officer Sanon grabbed the defendant's jacket, he could see the defendant standing in a “bladed” position with his right side away from Sergeant Kintigos, as if to conceal something on his right side. Further, Officer Sanon saw the item attempted to be concealed -- a firearm, as he could see the butt of the firearm protruding from the defendant's right jacket pocket. These observations, particularly against the backdrop of police observations suggestive of drug dealing in a high crime area, simultaneously provided reasonable suspicion that the defendant was committing a crime -- unlawful possession of a firearm -- and that he was armed and dangerous. See Commonwealth v. DePeiza, 449 Mass. 367, 374 (2007) (“It is the concealment of his pocket [containing a firearm] from police that supplies the reasonable suspicion that the firearm was illegal” and “that he was therefore armed and dangerous”).

2. Duplicative charges. The defendant contends that his two convictions of unlawful possession of ammunition were duplicative of his conviction of carrying a loaded firearm without a license. On appeal, the Commonwealth concedes that one count of possession of ammunition was duplicative.⁵ Therefore, we consider whether the remaining count is duplicative. We agree with the defendant that he could not be convicted of both possession of a loaded firearm and possession of ammunition if the ammunition referenced in both charges related to the same ammunition contained within the firearm. See Commonwealth v. Jefferson, 461 Mass. 821, 828 n.7 (2012) (where possession of ammunition charge premised solely on ammunition contained within firearm, conviction for both possession of ammunition and possession of loaded firearm could not be sustained, as former charge was lesser included of latter charge).

Here, however, the police recovered ammunition from the defendant's left jacket pocket, in addition to the ammunition contained within the loaded firearm in the defendant's right jacket packet. There was therefore a separate and distinct factual basis for the possession of ammunition charge and the defendant was therefore not “punished twice for possession of the same ammunition.” Commonwealth v. Johnson, 461 Mass. 44, 54 (2011) (noting that “where ammunition is found loaded in a firearm and also found elsewhere in the possession of a defendant ․ a jury could be instructed to distinguish among the ammunition”).⁶ The convictions were not duplicative.

The motion to suppress was properly denied. On one count of the complaint charging possession of ammunition (count 4), the judgment is vacated, the finding is set aside, and that count of the complaint is to be dismissed. On the remaining convictions, the judgments are affirmed.

So ordered.

Vacated in part; affirmed in part.

FOOTNOTES

2.   The motion judge found that the police observed the defendant leave his residence and walk into a housing complex, at which the police had, within the past six months, made numerous arrests, had received calls for shots fired, and had recovered drugs and guns. The defendant then went to a specific location within the housing complex, at which police had conducted undercover and controlled drug buys. The defendant emerged from the location within one minute with his hand in his right pocket, looking around.

3.   Officer Sanon testified that he had training in the characteristics of an armed gunman and the manner in which people who are not licensed to carry firearms conceal them from law enforcement.

4.   Sergeant Kintigos did testify later at trial that he asked the defendant to take his hands out of his pocket. In his appellate brief, the defendant urges this court to consider Sergeant Kintigos's trial testimony in determining the propriety of the denial of the motion to suppress as a matter of “fundamental fairness,” because the Commonwealth had not disclosed this exculpatory evidence by the time of the motion to suppress hearing. At oral argument, however, the defendant acknowledged that this information had been disclosed in pretrial discovery. Even if there had been evidence at the motion to suppress hearing that the defendant was asked to take his hands out of his pocket, though, that would not necessarily have led to the conclusion of a seizure. See, e.g., Commonwealth v. Fraser, 410 Mass. 541, 543-544 (1991); Commonwealth v. Evans, 87 Mass. App. Ct. 687, 691 (2015).

5.   Accordingly, we vacate the conviction on one count of possession of ammunition. We need not remand for resentencing, however, as the conviction did not result in an increase of the defendant's term of incarceration. See, e.g., Commonwealth v. Johnson, 461 Mass. 44, 54 n.12 (2011).

6.   Although there were no jury instructions because the defendant had a bench trial, the prosecutor argued that one count of the possession of ammunition charge related to the ammunition found in the defendant's left jacket pocket.